How can you remove easements and other adverse interests from real property?  Suppose you are buying, selling, or developing real property. A lot about the property can be revealed through due diligence, the preliminary title report, or the deed. Sometimes – hopefully not often– this work can surprise property interests and impact a successful conveyance.

In this webinar attorneys Sarah Liljefelt, Nicole Vetter, and Laura Schroeder will share legal strategies to investigate and discover adverse property interests. They will look at title reports and on ground inspection and other sources. Such interests might include

• well sharing agreements,
• ditch easements,
• pipeline or water infrastructure or utility easements.
• or road easements.

Removing or amending these adverse property interests could be critical depending on your transaction goals.

You must register in advance for the webinar by following this link: https://us02web.zoom.us/webinar/register/7816340806642/WN_e2G4lGikT0Sss2sTz11tDw

This webinar will be the 6th in our 2021 series of webinars we have called the “Vaccine” Series. This series is in respect to the on going fight against COVID.  Replays or the past webinars can be viewed at our Water Rights Video Handbook or Guide.

The last webinar of the series will be next month on November 9. It will ask “Should You or Can You Take Storm Water into Your Existing System?”

In the 2021 Nevada legislative session the Assembly considers nine water related bills and the State considers 15 water related bills total.  The 2021 legislative session began on February 1, 2021 and will conclude on June 1, 2021.  The Assembly bills are in various stages of consideration as the session approaches its conclusion. However, the clock has already run for certain bills.  Under Joint Standing Rule 14.3.1 the final standing committee to which a bill or joint resolution is referred in its house of origin may only take action on the bill or joint resolution on or before the 68^th calendar day of the legislative session. Under Joint Standing Rule 14.6, certain exemptions apply for re-referral of a bill to the Senate Committee on Finance or the Assembly Committee on Ways and Means.  The 68^th day of the Session was April 9, 2021.

Other deadlines apply pursuant to Joint Standing Rule 14.3. These include:

1. Final action may only be taken by the House of origin on or before the 79^th calendar day of the legislative session (April 20, 2021);
2. Final standing committee to which a bill is referred in the second House may only take action until the 103^rd day of the legislative session (May 14, 2021) unless referred to the Senate Committee on Finance or the Assembly Committee on Ways and Means; and
3. Final action on the bill may only be taken by the second House on or before the 110^th day of the legislative session (May 21, 2021).

As a result, some of the bills are dead in the water and will progress no further.  Summaries of pre-filed Assembly Bills 5, 6, and 16 can be found in our earlier blog post.  The remaining water related Assembly bills are summarized below.

Assembly Bill 146

Assembly Bill 146 proposes various changes to Nevada Revised Statute (“NRS”), chapter 445A regarding water pollution, including:

1. Requiring the State Department of Conservation and Natural Resources to establish a program regulating water pollution resulting from diffuse sources;
2. Establishing requirements for applicants for certain permits relating to water pollution to post a bond or other surety;
3. Revising the requirements for regulations adopted by the State Environmental Commission relating to water pollution, including the notice requirement relating to adoption of these regulations;
4. Revising provision related to the Director of the Department of Conservation and Natural Resources’ control of water pollution, including control of diffuse sources of water pollution;
5. Revising requirements for permits to discharge pollutants or inject fluids through a well; and
6. Requiring consultation and notification to Indian tribes of certain actions related to water pollution.

Assembly Bill 146 has not passed the Assembly Committee of Natural Resources but is exempt from Standing Rule 14.3.1.

Assembly Bill 354

Assembly Bill 354 is the fruition of one of the bill drafts discussed in this earlier blog.  This bill authorizes the creation and sets forth the authority and duties of water banks.  It additionally requires the State Engineer to submit a biennial report to the legislature related to water banks and provides penalties for violations of its provisions.

Further action on Assembly Bill 354 is not allowed, pursuant to Joint Standing Rule 14.3.1.

Assembly Bill 356

Assembly Bill 356 is the fruition of the other bill draft discussed in this earlier blog.  This bill creates and sets forth the requirements for a voluntary water conservation program and creates an account for the Nevada Division of Water Resources to purchase and retire water rights in targeted basins.

Assembly Bill 356 passed the Assembly Committee of Natural Resources and is being considered by the Assembly Committee of Ways and Means.

Assembly Concurrent Resolution 4

Assembly Concurrent Resolution 4 does not directly affect water resources or water quality.  However, it does direct the Legislative Commission to appoint a committee to conduct an interim study on general improvement districts (“GIDs”).  GID’s provide certain services and facilities to residents of the district, often times including water services.  Assembly Concurrent Resolution 4 will create a committee to study GIDs to: (1) improve accountability and effectiveness; (2) identify areas of continuing abuse and potential abuse in the creation, financing, operation, and oversight of GIDs; (3) consider modifying requirements related to GIDs; and (4) recommend possible legislative solutions to any continuing abuses.

Assembly Concurrent Resolution 4 was referred to the Committee on Legislative Operations and Elections.

Assembly Joint Resolution 2

Assembly Joint Resolution 2 recognizes that that health of forests, rangelands, and soils are inextricably linked to the quantity and quality of water.  It further expresses and supports the Federal Government, state agencies, conservation districts, and local governments to work collaboratively with water purveyors, land managers, private land owners, land users, and other stakeholders to identify watersheds that can be improved by better forest, rangeland, and soil health measures and to identify or establish voluntary programs within the limits of the legislative appropriations, and other available money to address the health of forests, rangelands, and soil.

Assembly Joint Resolution 2 passed the Assembly and is currently being considered by the Senate Committee on Natural Resources.

Assembly Joint Resolution 3

Assembly Joint Resolution 3 urgers various actions relating to the protection and conservation of land and water.  In the resolution, the Legislature expresses its support for the goal of protecting 30 percent of the lands and water in Nevada by 2030.  The resolution urges:

1. State and local agencies to honor tribal jurisdictions and the rights of indigenous tribes in efforts to protect land and water;
2. Fair treatments of all races in efforts to protect land and water;
3. Private landowners to participate in voluntary programs to protect wildlife habitat and increase carbon sequestration; and
4. Nevada Congressional Delegation to identify opportunities for federal legislation and regulatory action to expand protection and conservation measures on public land in Nevada.

Assembly Joint Resolution 3 passed the Assembly and is currently before the Senate Committee on Natural Resources.

Interested in more legislative updates?  Keep an eye on our blog for a summary of the 2021 water related Senate bills.

(Image Credit: https://mynews4.com/news/local/explaining-the-mining-gaming-and-sales-tax-proposals-of-the-2021-nevada-legislature; https://www.reviewjournal.com/news/politics-and-government/nevada/district-map-in-nevada-assembly-skews-blue-study-finds/)

Will Nevada establish water conservation programs? The Nevada Division of Water Resources, Office of the State Engineer (“NDWR”) under the direction of Acting State Engineer Adam Sullivan distributed two draft bills to various lobbying entities.  One seeks to establish a water bank system while the other considers the creation of water conservation initiatives.  As of February 17, 2021, neither of the bills were pre-filed with the Nevada Legislature for the 2021 legislative session.  However, the content of the bill drafts is outlined below.

Water Banking Bill

            What its water banking?  Water banking is a system used to manage water supplies throughout the Western United States.  Water right holders can forego water use and “deposit” or transfer water into the water bank, making it available for “withdrawal” or use by another.  Water banks are often managed at the state level and vary from state to state to accommodate specific regional needs.

NDWR’s water banking bill would amend Nevada Revised Statutes, Chapter 533.  The bill would allow for banking and leasing of water rights for irrigation use.  The bill as drafted will give NDWR the authority to approve of two kinds of water banks: statutory water banks and contract water banks.  Both types of water banks manage the deposit and lease of water rights and inform NDWR of banked water uses.  The bill also includes reporting requirements for these water banks.  While the bill recognizes some differences in the requirements of the two bank types, there is concern that the definition of each bank type is unclear in the current draft.

Another critique of the bill is its failure to limit banked water usage to a specific geographic or hydrographic area.  This raises concern that a water bank could be used to transfer water to any location in the state including outside of its respective hydrographic basin.

One of the bill’s highlights is the exemption banked water rights will receive from NDWR’s “beneficial use” requirement.  Under this exemption, irrigators who are not prepared to use their water can avoid forfeiture and receive the benefit of banking unused water rights.  This will allow for temporary use by another until the original owner is ready to place the water to beneficial use.

Water Conservation Bill

A. Conserved Irrigation Water

NDWR’s proposed water conservation program seeks to “encourage and progressively promote” the conservation and efficient use of water.  The bill encourages water conservation upgrades for irrigation.  As proposed, the bill will be retroactive for water conservation projects performed in the 5 years prior to its passage as well as future conservation efforts.

Applicants for this program will submit their water conservation measure proposal describing to the state how they plan to use conserved water.  It is yet unclear if the water’s usage is limited to irrigation of additional lands, or if irrigators can add conserved water to already irrigated lands to increase the water applied in a single location.

Limitations to conservation are considered in the bill.  For example, irrigators within an irrigation district must obtain district approval.  Additionally, of the amount of water conserved, the irrigator may only retain 75% for the proposed new use.  The remaining 25% of conserved water transfers to the state.  The state will then retain all conserved water until a basin exceeds perennial yield by 10%.  At that point, the state may make any additional water available for new appropriation.  State Agencies and political subdivisions may also hold conserved irrigation water rights for instream flow.

B. Retirement of Water Rights

            The water conservation bill also proposes the creation of a state account for the purchase and retirement of water rights.  NDWR would target certain over-appropriated basins in the following order:

(1)       Basins with greater than 200% over-allocation and over-pumping for the past 5 consecutive years;

(2)        Basins with great than 150% over-allocation; and

(3)       Basins with greater than 100% over-allocation.

Under this program, water would be purchased at fair market appraised value.

Conclusion

The content, structure, and language of these bills will likely develop as NDWR receives feedback and moves through the legislative process. It is important to remember that the public has a voice in this process through lobbying groups as well as their legislators. The public can stay on top of bills, once filed with the legislature here.

Interested in more information on water related legislation?  Read our blog on AB 5, AB 6, and AB 15 for the 2021 legislative session and keep an eye out for more legislature updates at www.water-law.com/blog.

Can Nevada gardeners collect rainwater? 

As Northern Nevada’s last frost approaches, gardeners are gearing up to transplant seedlings and get plants in the ground. However, with planting comes watering. Nevada gardeners are all too aware of this as they battle the summer heat. In a state as arid as Nevada, garden watering occurs frequently. Water use escalates quickly as summer temperatures rise. 

Whether to lower the environmental impact or the monthly water bill,  gardener’s worldwide commonly use rain collection barrels.  Yet, there is confusion. Can Nevada gardeners collect rainwater? 

The answer is yes! Although, this was not always the case.  Rainwater collection was illegal in Nevada until 2017.  However, following the 2017 legislative session, Governor Brian Sandoval signed Assembly Bill 138. The bill amended the existing law to allowing “de minimus collection of precipitation.”  (NRS 533.027)

What is “de minius collection?”  Nevada statutes define “de minimus collection” to include collection from the rooftops of a single-family dwelling.  The water must be used for domestic use and cannot be consumed.  Including in the definition of “domestic use” is watering a family garden. (NRS 534.013). Therefore, under Nevada law, rainwater can be collected for gardening.

So, gardeners if you haven’t already, it’s time to install those rain barrels and pray for rain! Learn more about how to research your water rights here.

(Immage Source: https://www.esf.edu/ere/endreny/GICalculator/RainBarrelIntro.html)

April 22, 2020 is the 50^th anniversary of the first Earth Day, a global holiday that unites citizens of the Earth to take better care of our planet.

Earth Day was initially proposed by Wisconsin Senator Gaylord Nelson as a way to bring awareness to ongoing ecological issues and concerns. It took place on April 22, 1970 with a series of “teach-ins” on college campuses across America. It then gained national attention and momentum. The first Earth Day inspired the creation of the Environmental Protection Agency (EPA). It also lead to the passage of the Clean Air and Clean Water Acts along with numerous other environmental laws and regulations.

The next Earth Day did not take place until April 22, 1990. Numerous corporations and celebrities endorsed the holiday, and over 200 million people worldwide came together to celebrate. Now Earth Day is an annual event observed around the world. It continues to inspire rallies, cleanup projects, and volunteer efforts. It also provides an opportunity to bring awareness to ongoing and ever-evolving environmental issues like climate change, pollution, and deforestation.

Earth Day is often celebrated outdoors in large groups. Community members gather to perform services such as picking up litter or planting trees. Many others participate in marches or protests about ways we can minimize our impact on the planet and improve global environmental health. However, given the ongoing COVID-19 pandemic and need for social distancing, Earth Day 2020 is a little different. The majority of events are taking place online rather than outside. Still, there are plenty of ways to celebrate. 

While outdoor community gatherings are largely cancelled this year, countless digital resources and events are taking place to make the 50^th anniversary memorable and impactful. Earth Day’s official website has an interactive map with links to events happening virtually all around the United States and the globe. This means you can participate in events in your community, on the other side of the country, or anywhere on the planet!

Of course, April 22^nd isn’t the only day to celebrate the Earth. The National Ocean Service has a list of 10 simple things you can do every day to protect and improve our planet in the short- and long-term. These steps are also laid out in their handy infographic below.

At Schroeder Law Offices, we try to celebrate Earth Day every day. To learn more about what we do and about all things water, check out our Schroeder Law Offices blog!

The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

Schroeder Law Offices does everything water, including educating others on the basics of water law, resource planning and water rights.

Recently at an educational one day “Boot Camp,” attorney Laura Schroeder covered an expansive list of water related topics for registrants from the Yamhill Soil and Water Conservation District. The class was tailored specifically to the audience’s questions and each attendee walked away with a gift certificate for a personal, free hour of consultation on water rights from Schroeder Law Offices, as well as wealth of new information.

Upcoming Water Rights Boot camps include this week with the Tualatin Soil and Water Conservation District on Thursday, November 21^st. A link to the event can be found here. 

Unable to attend this event but wanting to know more? Click here to learn about the presentation topics our office provides and how you can schedule and public or private presentation with one of our attorneys.

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Since 1991, the Stockholm International Water Institute (“SIWI”) has organized and hosted World Water Week. This annual event is designed to bring awareness to water issues and developments around the world. This year, World Water Week takes place at the Tele2 Arena in Johanneshov, Sweden from August 25 through August 30.

Throughout the week, seminars and events will be hosted by individuals and organizations from every corner of the globe. The theme for 2019 is “Water for Society- Including All.” Topics include climate change and sustainability, sanitation and health, equal representation in water-related industries, the impact of modern technology on water consumption and monitoring, and the evolving use of water in farming and industrial practices, among others. These events provide opportunities for discussion of ongoing water issues between industry leaders and students alike.

World Water Week also provides an opportunity to honor achievements in conservation, preservation of resources, and water management. The Stockholm Water Prize and the Stockholm Junior Water Prize are awarded annually to major contributors and innovators in the water world. Anyone who has made “extraordinary water-related achievements” is eligible for nomination, and past winners have hailed from Denver, Colorado to Phnom Penh, Cambodia, and everywhere in between.

Of course, not everyone can make it to Sweden. However, there are still plenty of ways to celebrate World Water Week! SIWI’s website has a wealth of information about global water issues, including blog posts, news articles, and information on areas SIWA considers priorities in terms of water conservation and development. There are also organizations around the United States similarly dedicated to encouraging knowledge of and involvement in water issues on a local level. A list of organizations participating in World Water Week can be found here.

World Water Week provides a great opportunity to promote awareness of water usage and conservation around the world. Still, water issues persist year-round. Stay tuned to Schroeder Law Offices’ blog for water law and water new updates all year long!

On July 24, 2019, Tim Wilson, Nevada Division of Water Resources’ acting State Engineer gave an informative presentation on the 2019 Legislative Session. Mr. Wilson provided summaries of several water related bills that were introduced and/or passed during this session. A few of the more interesting bills are described below.

Assembly Bill 62 (AB 62)

AB 62 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of Nevada Division of Water Resources (“NDWR”) on November 19, 2018. This bill proposed legislative changes concerning the granting of Applications for Extensions of Time for Proofs of Completion only. It does not address Extensions of Time for Proofs of Beneficial Use. Currently a permittee is allowed any number of extensions of time to file a Proof of Completion of Work. According to Mr. Wilson, the threshold for granting an extension of time for a proof of completion is unreasonably low as the permittee need only show good faith and reasonable diligence to perfect their water right application. NRS 533.380 defines “reasonable diligence” as the “steady application of effort to perfect the application in a reasonably expedient and efficient manner under all the facts and circumstances.” Water cannot be placed to beneficial use unless and until the construction works are complete. Mr. Wilson noted that the granting of unlimited extensions of time is undermining the basic principal of beneficial use.

AB 62 sought to develop hard time limits on the filings of the Proofs of Completion of Work depending on the size of the project and the amount of money expended on the project. For example, a permit for municipal use would require a Proof of Completion to be filed within 15 years and at least $50,000 must be expended on the project. A permit for an irrigation or stockwater use would have a 5 year cap with a much smaller minimum expenditure. To accommodate permittees who are unable to complete construction of works for reason outside of their control, AB 62 proposed a “tolling” provision to suspend the time limit for express conditions such as the permittee is waiting on federal, state or local government consent necessary for the project or a pending court action or adjudication.

Many amendments were made to AB 62 and the bill was eventually passed by both the Assembly and the Senate. The Governor removed the majority of the language proposed, updated the statute to direct the State Engineer to adopt any regulation necessary to carry out provisions of the statute concerning Proofs of Completion and ordered that copies of the regulations be provided to any person upon request, signed the Bill, and directed NDWR to draft regulations. AB 62 as-enacted can be found at (https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5987/Text). Workshops and public meetings will be held and NDWR plans to make the draft regulation language and updates available on their website at http://water.nv.gov/index.aspx.

Assembly Bill 95 (AB 95)

AB 95 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of the Legislative Committee on Public Lands on January 24, 2019. This bill proposed legislative changes for domestic well allowance during times of curtailment. Nevada statutes at NRS 534.110 require the State Engineer to conduct investigations of basins, or portions of basins; and, where it appears there is not enough groundwater supply to satisfy permittees and vested rights holders’ withdrawals, the State Engineer may order withdrawals (including withdrawals from domestic wells) to be restricted based on priority.

AB 95 amends the statutes so that in the event the State Engineer finds, or a court orders, State Engineer restriction, State Engineer curtailment, or basin designation under a Critical Management Area, the State Engineer can allow a domestic well to withdraw up to 0.5 acre feet annually, if it can be recorded by a water meter. The revised statute does not make domestic wells immune to curtailment but ensures they will still receive some water. AB 95 was passed by both the Assembly and Senate and was signed by the Governor. AB 95 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6082/Text.

Senate Bill 140 (SB 140)

SB 140 was introduced by the Committee on Natural Resources on February 11, 2019 and proposed to reserve 10 percent of water available for appropriation in certain basins not yet fully or over appropriated. Senator Pete Goicoechea testified that the intent of SB 140 is to “avoid over-appropriation of available water in basins by placing a marker for retention.” SB 140 was passed by the Senate and Assembly and signed by the Governor. SB 140 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6171/Text. As enrolled, NRS 533 will now include a provision wherein for each basin where there is uncommitted groundwater pursuant to existing permits, certificates or otherwise, the State Engineer shall reserve 10 percent of the total remaining, non-committed, unappropriated groundwater. As introduced, SB 140 intended for the reserved water to be available for use during times of drought or emergency, however, as enrolled, the statute further explains that the groundwater reserved in the basin is not available for any use.

During the presentation many questions and comments were posed as to how this will be implemented, and all the issues that come into play practically as well as legally. NDWR now must attempt to figure out the amounts of uncommitted water available: pending applications need to be resolved before this determination can be made; NDWR needs to determine how to address consumptive vs. non-consumptive uses; and, NDWR needs to decide how to address areas where basins share perennial yield amounts. One can only anticipate that this Bill will be amended in the future.

It is no secret that Nevada water is a precious resource that needs laws in place to protect its availability to current and future water users. Several bills in the 2019 session related to the protection and conservation of water. Nevada’s precarious water situation has gained the attention of our legislature and it will be interesting to see what water related bills will be introduced next session.

When most of us think about the changing seasons, we think about the change in weather. When we think about the transition to Summer, we think about the days getting warmer. When we think about the transition to Winter, we think about the days getting colder. There is much more to changing seasons than changes in weather.

According to Merriam-Webster, the definition of a season is “a period of the year characterized by or associated with a particular activity or phenomenon.” Examples of this definition include a period associated with activities of agriculture such as growth or harvesting, irrigation seasons, periods when animals engage in certain activities like migration, birth of offspring, and moving from high “summer” country to low “winter” country. In life, one can characterize the seasons with the circle of life with birth or renewal in the spring and death, hibernation and sleep in the winter. There are so many ways we can perceive these natural changes each year.

The National Oceanic and Atmospheric Administration points out that seasonal changes in turn affect soil moisture, evaporation rates, river flows and lake levels. The subsequent changes in vegetation also affect the amount and kinds of crops and food available for humans, animals and other organisms.

The effects of seasonal changes also present potential risks. The Federal Emergency Management Agency (“FEMA”) provides warnings of risks presented in the seasonal change to Spring. FEMA notes that while Spring typically brings warmer weather and longer days, it also brings risk associated with heavy rains, severe weather and rapid snowmelt that can lead to flooding and/or damage to levees and dams. For more information concerning risks and protection from spring flooding, please visit FEMA’s “What You Should Know” at https://www.ready.gov/sites/default/files/Spring_Flood_Fact_Sheet.pdf.

So, as the seasons change and we swap out our wardrobe for the changing temperature, lets remember a change in season is so much more than just a change in weather.

The 20th annual National Groundwater Awareness Week will occur between March 10 – March 16, 2019, and this year’s theme for awareness is “Think.” Though a simple theme, through “Think,” the National Groundwater Association (“NGWA”) urges us to “think” about how we impact our groundwater resources in our everyday lives.

For National Groundwater Awareness Week 2019, NGWA encourages us to consider small steps taken to improve the general public’s awareness of groundwater use and its importance in our every day lives, i.e. “Think” about not running the water while you brush your teeth, or, “Think” about fixing the leaking faucet. Sometimes it’s the smallest things that makes the biggest differences!

Taking steps to conserve and protect groundwater is of utmost importance to all as we depend upon groundwater for basic needs. According to NGWA research, approximately 132 million American rely on groundwater for drinking water. Besides drinking water, groundwater consists of a major resource in food and power production, including irrigation, livestock, manufacturing, mining, thermoelectric power, and many other resources. NGWA offers the following facts for consideration:

• Americans use 79.6 billion gallons of groundwater each day.
• Groundwater makes up 20 to 30 times more water than all U.S. lakes, streams, and rivers combined.
• 44 percent of the U.S. population depends on groundwater for its drinking water supply.
• More than 13.2 million households have their own well, representing 34 million people.

“Think” about that!

As a part of 2019’s Groundwater Awareness Week, NGWA will be participating in the Water Resources Congressional Summit to bring federal support for groundwater awareness. Topics for the summit will focus on bringing federal support for detection and remediation regarding PFAS contamination, increasing efforts to promote groundwater recharge, and bolstering support for drinking water infrastructure improvement. More information and educational tools on the 2019 summit topics can be found at the NGWA’s online database.

“Think” about what you might do to bring groundwater awareness to your friends and family!

We all know that pumpkins make great fall decorations and are an icon of this Halloween holiday, however they also provide many more less known benefits. According to the Old Farmer’s Almanac, all parts of pumpkins are edible except the stem and if kept in a cool, dry space, will keep for up to 6 months or more! Pumpkins are a good source of fiber, vitamin C, several of the Vitamin B complexes, potassium and carotenoids that play a role in cancer prevention, controlling blood-sugar levels and boosts the immune system.

Adding pumpkins into crop rotations help farmers. Their presence helps soil maintain a nutrient balance, reduces weed problems and decreases the likelihood of disease spores, eggs and pests. According to Texas A&M Horticulture, planting pumpkins directly after harvesting sweet corn helps to decay a coarse crop refuse that is resistant to many other crops. And planting pumpkins directly after grass crops results in fewer diseases to the pumpkins. Pumpkins are also unique in that they can tolerate soils with low pH levels as well as extremely acidic soils.

Pumpkins are also somewhat tolerant of dry soil conditions and in certain locations farmers can rely solely on rainfall. When rainfall is inadequate, irrigation is essential especially during the pollination and fruit set periods. Many farmers have found that using a drip system to water their pumpkin crop saves time and money by using less water than flood irrigation or center pivot sprinklers.

Pumpkins have both male and female flowers and pollen transfer is a necessary event. Historically many farmers relied on native bees to transfer the pollen, however, due to a decline of bee population in certain areas, some farmers have resorted to renting bee hives for the first few weeks of flowering. Weeds, insects and diseases are a constant battle for pumpkin farmers as well. Farmers are in constant flux of fighting off pests and diseases while maintaining the integrity of the environment necessary for other activities such as bee pollination.

Pumpkins are beneficial in so many other ways than their decorative purposes. The next time you see a pumpkin, remember all of their unique qualities and ways they benefit the farming industry.

For over half a century, the question of how to conserve and replenish water in Idaho’s largest aquifer, the Eastern Snake Plain Aquifer (ESPA), has been on the collective minds of the state’s water users. Serious droughts in the 1990s increased pressure on the ESPA resource, and preliminary recharge efforts were unsuccessful. Finally, in 2009, the ESPA Comprehensive Aquifer Management Plan, otherwise known as CAMP, was signed into law. CAMP’s goal is to annually recharge 100,000 acre feet (af) during the first ten years of the plan’s implementation, followed by 250,000 af per year thereafter.

The recharge comes from a combination of sources. The Idaho Department of Water Resources (IDWR) also supports canal companies and irrigation districts recharge projects, rotations and efficiency reductions.

The 100,000 af goal was not quite reached in the first few years. Recharge was roughly 75,000 af in both the 2014-2015 and 2015-2016 seasons. However, the 2016-2017 saw 317,000 af returned to the ESPA, far exceeding the 100,000 af goal. The 2017-2018 season is shaping up to be even better. Over 350,000 af have already been replenished.

ESPA’s recharge success is good news for the residents of southern and eastern Idaho, and Idaho in general, as roughly 25% of Idaho’s economy is dependent upon agricultural output from the region. Unfortunately, CAMP’s success in the ESPA has not been matched by similar programs throughout the state and region. The Rathdrum Prairie Aquifer (RPA) in the northern part of the state, which is responsible for roughly 8% of Idaho’s production of goods and services, has a CAMP program in place. However, the RPA has not been nearly as successful as the ESPA at achieving substantial recharge. Another CAMP program has been proposed for the Treasure Valley, but has been delayed due to ongoing discussion between legislators and constituents.

In Washington, the Odessa Groundwater Replacement Program (OGWRP) was implemented to reintroduce water back into the Odessa Aquifer. Several initiatives under the umbrella of this program have been enacted, and have had reasonable success. However, efforts have focused more on limiting usage of the aquifer rather than reintroducing water back into it. Oregon has also taken steps to encourage recharging of its aquifers. However, as illustrated by the attempts in the Umatilla Basin, these programs have struggled to achieve significant recharge.

CAMP’s success did not come overnight. As with any major experimental project, it took decades of planning, communication, and compromise to achieve the ESPA’s level of recharge. Nonetheless, the potential for aquifer recharge demonstrated is inspiring, and will hopefully pave the way for similar projects throughout the West.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and events!

One of the greatest luxuries we are afforded in the Pacific Northwest is the abundance of natural areas to explore. Oregon’s landscape provides us with easy access to mountains, rivers, lakes, forests, and, of course, the Oregon Coast. Unfortunately, as anyone who has spent time in these regions can attest, where people go, debris follows. Some of the litter is left intentionally, like cigarette butts ground into the sand or food wrappers thrown out of the window of a moving car. Some accidentally works its way out of pockets or backpacks and gets left behind on the trail. Either way, we can all agree that nothing breaks the tranquility of time spent in the great outdoors than seeing a soda bottle or old receipt laying on the ground.

Another great thing about the Northwest, though, is that we care enough to do something about it. Organizations across the state work to bring people together to clean up their communities and public lands to ensure that everyone is able to fully enjoy them. One of the major statewide organizations is SOLVE. Since 1969, SOLVE has organized volunteers from all over the state of Oregon to remove litter and invasive species from natural spaces through a variety of events hosted throughout the year.

Last Saturday, March 24, 2018, SOLVE held its annual beach cleanup and, according to its website, removed over 15,000 pounds of garbage up and down the Oregon coast. Schroeder Law Offices’ paralegal, Rachelq Harman participated in Manzanita, Oregon, where an impressive turnout of locals and out-of-towners alike gathered to clean up the beach.

 Participating in the beach cleanup and seeing how much trash lingers even when a concerted effort is being put in has inspired Rachelq to seek out more opportunities to help clean up and maintain our beautiful state. While you certainly don’t need a group or event to get out and do some good, SOLVE keeps a list of upcoming opportunities posted on its website that anyone can take part in, though some do require preregistration.

April is Earth Month, and one of SOLVE’s biggest events, SOLVE IT for Earth Day, is coming up on April 21, 2018. Events will be held throughout western Oregon and southwest Washington. For details about specific meetups, you can check out the list here.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and events!

Apparently there are several theories of how and why we started changing our clocks for daylight saving. Many people think it originated to allow children to help their families with farm work before having to go to school for the day. Another popular theory is that it was suggested by Benjamin Franklin in 1784 when he wrote a letter to the Journal of Paris advocating that if people woke up with the sun it would result in saving energy and resources in the need for candles.

According to National Geographic and David Prerau, author of Seize the Daylight: The Curious and Contentious Story of Daylight Saving Time, the idea of the modern concept of daylight saving was actually derived from George Hudson, an entomologist from New Zealand. In 1895 Mr. Hudson proposed a 2 hour time shift with the intention of having more sunlight after his day job to go bug hunting in the summer months.

The British Broadcasting Corporation attributes the modern day concept of daylight saving to British builder William Willett. Mr. Willett was horseback riding on a summer morning in 1905 and noticed how many curtains were drawn against the sunlight. His solution was to move the clocks forward before summer began. In 1907, Mr. Willett published a pamphlet called “Waste of Daylight” suggesting clocks be turned forward by 4 weekly twenty minute increments in April and reversing the same way in September. British politicians in favor of Willett’s suggestion proposed a Daylight Saving Bill, however it was defeated in 1909.

Author Prerau explains that the idea actually caught on during World War I when the German government started looking for ways to conserve energy. Because coal power was so predominant at that time, daylight saving really did result in saving energy. Germany adopted the system and soon after the United States, as well as nearly every other country fighting in the war began using the time change.

Although Benjamin Franklin may have identified the need for and the benefits of adjusting clocks, it appears we can thank George Hudson and William Willett for our modern day concept of daylight saving.

World Water Day is an event hosted annually by the United Nations on March 22nd. Each year the event has a theme, and 2018’s theme is “Nature for Water.” Events surrounding World Water Day will focus on nature and how we can use our natural resources to overcome the water challenges of the 21st century. There are water-related crises occurring around the world caused by both environmental damage and climate change. World Water Day 2018 will explore how nature-based solutions have the potential to solve many of the challenges we currently face as a global society. Click here for a list of events occurring for World Water Day across the globe.

The headline facts for World Water Day this year focus not only on water demand, but water availability and water quality. Here are a few of their headline facts on water demand, availability, and quality:

• Demand: 2.1 billion people lack access to safely managed drinking water services
• Availability: Today, around 1.9 billion people live in potentially severely water-scarce areas. By 2050 this could increase to around 3 billion people.
• Quality: Globally, over 80% of the wastewater generated by society flows back into the environment without being treated or reused.

In the United States, most regions have water districts and agencies that oversee water use as well as its reuse, helping to replenish local resources while monitoring for drought or scarcity issues. While this may be true for our country, United Nation’s Water (“UN Water”) works to bring awareness to those places in which regulations are not as well-monitored or addressed, and also brings awareness to improvements that can be made in developed regions. While World Water Day 2018 will bring focus to these issues, more research is required for solutions that impact all corners of the globe. On March 22nd, expect the World Water Development Report to be released highlighting the performance, impact, and scalability relevant to the nature-based solutions thus far.

The UN Water online database contains resources regarding sustainable development goals for clean water and sanitation for further information.

Groundwater is one of the world’s most essential natural resources! According to the United States Geological Survey department (“USGS”) groundwater makes up approximately 1/3 of the public drinking water supply delivered though our county and municipal systems. For rural populations not connected to county or city delivery systems, groundwater makes up about 90% of their drinking water. USGS also reports that groundwater provides over 50 billion gallons per day for agricultural use in the United States. Groundwater pumping has been steadily increasing. In some basins groundwater is being extracted at a faster rate than the basin can recharge. As we are seeing in many states, this excessive pumping can lead to wells drying up, water level decline in hydraulically connected streams and lakes, reduction in water quality, increased costs associated with pumping, and subsidence issues crossed by the loss of water supporting our ground and soils.

The National Groundwater Association (“NGWA”) encourages everyone to participate in National Groundwater Awareness Week. According to NGWA, this year’s theme is “Test. Tend. Treat” to encourage a more holistic approach to groundwater conservation. NGWA is encouraging others to share their stories during this week on social media using the hashtag #GWAW2018. If you are looking for other ways to get involved and promote ground water awareness, the USGS and other water organization have provided some ideas (http://groundwaterawarenessweek.com/). During 2018 National Groundwater Awareness Week, let’s evaluate our own water use and identify ways we can help protect this valuable resource!

On December 19, 2017, Nevada State Engineer issued Order No. 1293, prohibiting the drilling of new domestic wells in the Pahrump Artesian Basin. Previously, the State Engineer designated lands in Pahrump Artesian Basin as coming under the provisions of underground water law through Orders 176, 193 and 205¹. Prior Orders stated that new applications would be denied with very limited exceptions. Recently the State Engineer conducted further investigation into this basin and determined that due to the rate and extent to which groundwater is being depleted, that prohibition of domestic wells under Order No. 1293 is vital to the welfare of the basin.

The State Engineer estimates that the perennial yield of the Pahrump Artesian Basin, or the maximum amount that can be withdrawn to still allow the basin to recharge, is 20,000 acre-feet annually. Yet, the State Engineer estimates that the amount of water from committed rights (amounts of water provided under Permits and Certificates issued by NDWR) amounts to approximately 59,175 acre-feet of withdrawals from the basin. Therefore, the permitted rights authorize almost triple the amount of water that can be withdrawn without impeding the ability of the basin to recharge itself. However, because domestic wells are not subject to permit requirements, this estimated withdrawal number is actually higher as domestic well withdrawals are not included. In fact, Order No. 1293 estimates that there are approximately 11,280 existing domestic wells in the Pahrump Artesian Basin.  Thus, if each well were withdrawing the maximum of 2 acre-feet per year, water withdrawals from the domestic wells alone would exceed the perennial yield. In theory, all wells in the basin may be withdrawing close to 4 times the amount the basin can manage.

Order 1293 prohibits the drilling of any new domestic well, unless a user can obtain an existing permitted right to cover the 2.0 acre feet per year to serve the “new” use. Thus, the only way to obtain a new domestic use will be to go out and buy a water right!  Once purchased, these acquired rights will be “given back” to the basin under a relinquishment process with NDWR while allowing the domestic use to continue without a water right. Further exempted from Order 1293 are domestic wells requiring rehabilitation under Nevada Administrative Code (“NAC”) 534.189, wells requiring reconditioning under NAC 534.188, or existing wells needing replacement.

The domestic well exemption was a great policy for many single families wishing to develop their property. However, protecting our valuable water resources is top priority, and this purchase and relinquishment program will still allow for property development with proper resource protection. For a full reading of Order 1293, please visit http://images.water.nv.gov/images/Orders/1293o.pdf.

¹Nevada Revised Statutes (“NRS”) chapter 534.013 defines domestic use as culinary and household purposes for a single-family dwelling, watering of a family garden and lawn and watering of livestock, domestic animals and household pets. Pursuant to NRS 534.180, if a well is being used for domestic use and the use does not exceed 2 acre-feet per year, the well is exempt from the permitting process under with Nevada Division of Water Resources (“NDWR”) for water use.  

The week of August 28 through September 1, 2017 is “World Water Week,” an international conference organized annually in Stockholm, Sweden that focuses on new thinking and positive action toward water-related challenges and their impact on the world’s environment, health, climate, economic and poverty reduction agendas. The World Water Week annual forum is held by the Stockholm International Water Institute (SIWI) to provide a platform for collaborating organizations to gather for seminars and events regarding water and development issues. Individuals from all over the world gather to present findings at scientific workshops and examine methods for examination and collaboration on water-related topics. Each annual conference has a theme, the 2017 theme is “Water and Waste: Reduce and Reuse.”

The 2017 conference will include more than 200 sessions of seminars, volunteer projects, events, exhibitions, closed meetings and social events that link scientific understanding with policy and decision-making to develop concrete solutions to water, environment, and development challenges. A list of participating organizations can be found on the SIWI World Water Week website.

Research and information shared at the World Water Week forum is exchanged between scientific, business, policy, and civic communities with the goal of implementing actions and commitments and impacting decisions related to international processes regarding water-related challenges. To learn more about SIWI’s dedication to to finding solutions to international water challenges, read more about the institute.

[Photo Credit to Stockholm International Water Institute (SIWI)]